The University of Oxford Centre for Competition Law and Policy
www.competition-law.ox.ac.uk
Working Paper CCLP (L) 41
Excessive Pricing: A View from Chile
Omar Vásquez Duque*
Abstract
Excessive pricing is one of the most controversial topics in competition law. Notwithstanding
excessive pricing being one of the most blatant forms of abuse, a non-intervention policy tends to
be the prevalent choice worldwide. Such a “hands-off” approach is based on the grounds that
excessive prices self-correct, as well as practical difficulties in measuring a competitive
benchmark and identifying excessiveness, and the fear of distorting ex ante incentives to
innovate and invest.
This article aims at providing a more balanced approach, which might be particularly useful for
small economies, since market failures tend to linger for a longer time in small markets.
Accordingly, it reviews the literature concerning the merit of antitrust intervention and the tests
proposed to determine when intervention should take place. Then it illustrates the Chilean
experience, which shows challenges concerning the scope of competition law; its goals; and
principally the identity of a jurisdiction influenced by both the American and the European
systems. This work concludes, on a policy level, that antitrust law might have a role to play in
excessive pricing cases; and points out that even if hard enforcement is not considered
appropriate, soft-enforcement strategies might also be advisable to address excessive prices. On a
practical level, this article concludes that jurisdictions where excessive pricing provisions already
*
LL.B. Law and Social Sciences, Universidad de Chile. Lecturer, Economic Law Department, Universidad de
Chile Law School. I did most of the thinking for this article as part of an independent academic visit to the
University of Oxford Centre for Competition Law and Policy. I am very grateful to Ariel Ezrachi for his generous
support, encouragement and feedback. Some of the views expressed in this article were developed in conversations
with Benjamín Mordoj. Michael E. Levine provided lucid suggestions and Julian Nowag helpful comments. The
opinions expressed here are those of the author and do not represent the institutions to which the author is affiliated.
Comments are appreciated: [email protected]
exist should prefer tests aimed at defining a workable application of such provisions. This paper
provides guidelines to determine their enforcement.
Keywords: Excessive pricing – abuse of dominance – competition law – antitrust – Chile
2
INDEX
I. INTRODUCTION ............................................................................................................. 1
II. THE POLICY: WELFARE AND MARKETS............................................................. 2
III. THE THEORY: EXCESSIVE PRICING ................................................................... 6
A. The Concept.............................................................................................................................. 6
B. Arguments against intervention .............................................................................................. 9
C. Arguments in Favour of Intervention .................................................................................. 11
IV. INTERVENTION IN CONTEXT .............................................................................. 17
A. The Choice of a Legal Standard and a test .......................................................................... 17
B. Legal Transplants in Context ................................................................................................ 22
V. THE CHILEAN CASE ................................................................................................. 24
A. The identity of Chilean Competition Law ........................................................................... 24
B. Brief review of Chilean Competition Law ........................................................................... 25
C. Chilean case law on excessive pricing .................................................................................. 27
V. CONCLUSIONS ............................................................................................................ 31
BIBLIOGRAPHY ............................................................................................................... 33
I. INTRODUCTION
Excessive pricing is one of the most controversial topics in competition law. Indeed,
whereas excessive pricing by a dominant firm is one of the most noticeable ways firms can
exploit consumers and cause inefficiencies that competition laws are meant to prevent, the
prohibition against excessive pricing raises practical and ideological concerns. These
apprehensions lead, on a policy level, to the argument that excessive pricing is outside the
realm of competition law. On a practical level, they lead enforcers not to apply excessive
pricing provisions. In fact, despite a theoretical divergence between the American and the
European antitrust systems –according to which the former rejects intervention and the
latter condemns excessive or unfair prices– during recent years a non-intervention policy
has championed in most of jurisdictions worldwide. Such an approach is based on the
grounds that markets tend to self-correct, the belief that an interventionist approach might
lessen incentives to invest, and practical difficulties concerning excessiveness’ assessment.
In this article I review the theory dealing with excessive pricing, with the aim of
proposing a more balanced approach between the different goals that might be in conflict
when enforcers decide whether to intervene in an antitrust context. I embark this analysis
from previous literature that has emphasized the role of strategic behaviour and dynamic
analysis of entry;1 compared error costs between a rule of reason rule and a per se legality
rule;2 and suggested a proper analytical framework for small or developing economies.3
Accordingly, I will highlight that high prices, in and of themselves, do not attract entry; that
a rule of reason is better suited for addressing excessive pricing claims as a general rule;
and that small economies present features that might justify a more interventionist
approach.
This article is structured as follows: In section II, I refer to the general economic
theory that underlies competition law and economic regulation; I argue that the actual
protection and promotion of competition involves a wide array of strategies, some closer to
what, according to the conventional dichotomy, would qualify as regulation. Then I discuss
the two theoretical approaches that have emerged to address excessive pricing claims. In
section III, I review the literature concerning excessive pricing, with special emphasis on
the arguments in favour and against antitrust intervention. Section IV deals with special
circumstances that should be noted when deciding whether to intervene in an antitrust
context. In particular, I argue that market’s ability to self-correct varies. Hence, different
approaches might respond to diverse market realities and might be valid for particular
1
Ariel Ezrachi and David Gilo, “Are Excessive Prices Really Self-Correcting?,” Jnl of Competition Law
& Economics 5, no. 2 (2009): 249–68.
2 David S. Evans and A. Jorge Padilla, “Excessive Prices: Using Economics to Define Administrable
Legal Rules,” Jnl of Competition Law & Economics 1, no. 1 (2005): 97–122.
3 Michal S. Gal, Competition Policy for Small Market Economies (Boston: Harvard University Press,
2003); Michal Gal, “Monopoly Pricing as an Antitrust Offense in the U.S. and the EC: Two Systems of Belief
About Monopoly?,” Antitrust Bulletin 49 (2004): 343–84.
1
contexts. Next, in section V, I refer to the Chilean case, which might be useful for other
small economies, particularly with respect to the adoption of legal transplants, the choice of
legal tests and remedies. Finally I provide general conclusions and a more balanced
approach that rejects the conventional “hands-off” wisdom and calls for a case-by-case
analysis.
II. THE POLICY: WELFARE AND MARKETS
Modern economies rely on markets for the production and distribution of goods and
services because free markets generally maximise social welfare. Indeed, competitive
markets tend to lead to a high degree of productive, distributive and dynamic efficiency.4
Yet, when markets are not competitive, they fail to provide efficient outcomes. In such a
case, firms enjoy a degree of market power and exercise it by reducing their output and
increasing the prices of goods and services.5
Broadly speaking, governments have two choices to address market power: (1) to
regulate the market ex ante or (2) to protect the process of competition ex post, by
proscribing the anticompetitive exercise of market power, with the hope that market forces
will erode the positions of monopoly power. This distinction is the base of the dichotomy
between competition law and regulation. Indeed, the former is generally understood as
indirect regulation, that is, as a means for protecting the process of competition in order to
maximise consumer welfare. 6 Economic regulation, in contrast, tends to be defined as
direct economic supervision of market power.7 Both strategies address monopoly power,
but they utilize different means and might respond to divergent ends.8
4
See Joseph E. Stiglitz, Economics of the Public Sector, 3rd Revised edition (New York: W. W. Norton &
Company, 2000), 57; William J. Baumol, The Free-Market Innovation Machine: Analyzing the Growth
Miracle of Capitalism (Princeton, NJ: Princeton University Press, 2004); Frederic M Scherer and David Ross,
Industrial Market Structure and Economic Performance, 3rd ed. (Boston: Houghton Mifflin Company, 1990),
19.
5 Robert Pindyck and Daniel Rubinfeld, Microeconomics, 8 edition (Boston: Prentice Hall, 2012), 625. In
an IP context, Mark Lemley’s words are illustrative: “we are currently (and mistakenly) conditioned to think
of private property and private ordering as efficient in and of themselves, rather than as efficient only in the
context of robust market competition”. Mark A. Lemley, “A New Balance between IP and Antitrust,”
Southwestern Journal of Law and Trade in the Americas 13, Stanford Law and Economics Olin Working
Paper No. 340 (2007): 237, http://papers.ssrn.com/abstract=980045 (accessed June 27, 2013).
6 Richard Whish and David Bailey, Competition Law, 7th ed. (Oxford; New York: Oxford University
Press, 2012), 1.
7 See Niamh Dunne, “Between Competition Law and Regulation: Hybridized Approaches to Market
Control,” J. Antitrust Enforcement (2014): 229. Citing: Organization for Economic Cooperation and
Development, Restructuring Public Utilities for Competition, (OECD Publications 2001), 11.
8 Stephen Breyer, Regulation and Its Reform, Reprint edition (Cambridge, Mass.: Harvard University
Press, 1984), 156. (“Although some critics claim that antitrust is another form of governmental regulation, in
principle the antitrust laws differ from classical regulation both in their aims and in their methods”). Citation
omitted.
2
Each instrument comprises a discrete legal tool for market supervision, having each
instrument its proper domain. Antitrust law’s domain should be limited to controlling the
unlawful acquisition or exercise of market power. 9 Market engineering should be
considered a proper task for regulation, which prescribes the desired outcome of the market
and, in so doing, oversteps the market.10 As the establishment of regulatory standards and
the subsequent monitoring and enforcement of those standards would often involve no
negligible expenses, 11 it might be socially desirable to leave the correction of certain
market failures to the market itself and regulate major market failures such as utilities with
natural monopoly features.
Notably, the choice of leaving the correction of the market to the market itself
assumes that the entry of new competitors can erode the positions of market power. Yet,
such an assumption is generally wrong for the case of monopoly pricing, since a firm is not
dominant unless it has substantial and durable market power.12 Furthermore, what attracts
entry is not the excessive price on itself, but the expected post-entry price, which is
unrelated to whether the pre-entry price was excessive or not. 13 This distinction is not
considered in the dominant theory of contestable markets, which assumes that incumbents
do not react immediately to entry by cutting their prices to protect their market share. 14
What to do, then, with market failures of a low entity that do not justify ex-ante regulation
or in cases where there is a regulatory failure? The question thus refers to whether antitrust
law should take the place of regulation to control the exercise of market power under
special circumstances, when social welfare is implicated. Two answers have emerged, at
least in theory. On the one hand, U.S. antitrust law does not consider excessive pricing as
9 According to Areeda, Kaplow and Edlin: “… antitrust’s domain is intrinsically limited… Antitrust also
is not direct, extensive regulation of industry, an alternative that has been enacted for some public utilities.
Rather, antitrust supplements or, perhaps, defines the rules of the game by which competition takes place”.
Phillip E. Areeda, Louis Kaplow, and Aaron S. Edlin, Antitrust Analysis: Problems, Text, and Cases, Seventh
Edition, 7 edition (Aspen Publishers, 2013), 10.
10 In Justice Breyer’s words: “The antitrust laws seek to create or maintain the conditions of a competitive
marketplace rather than replicate the results of competition or correct for the defects of competitive markets”.
Breyer, Regulation and Its Reform, 156–57.
11 See Robert Baldwin, Martin Cave, and Martin Lodge, Understanding Regulation: Theory, Strategy, and
Practice, 2 edition (New York: Oxford University Press, 2013), chap. 2.; Gunnar Niels, Helen Jenkins, and
James Kavanagh, Economics for Competition Lawyers (Oxford; New York: Oxford University Press, 2011),
281. (“The main point to be aware of –and this may well be a decisive factor in any cost-benefit analysis of
intervention– is that such regulatory structures are costly to set up and maintain”).
12 Renato Nazzini, The Foundations of European Union Competition Law: The Objective and Principles
of Article 102 (Oxford: Oxford University Press, 2012), 97. Also, a monopolist would tend to discourage
uninformed potential entrants by charging a limit price. “Limit pricing” consists of a pricing strategy
according to which the monopolist charges a lower price than the monopoly price in order to deter entry.
Ezrachi and Gilo, “Are Excessive Prices Really Self-Correcting?” 258.
13 Ezrachi and Gilo, “Are Excessive Prices Really Self-Correcting?” 255–57.
14 Ariel Ezrachi and David Gilo, “Excessive Pricing, Entry, Assessment, and Investment: Lessons from
the Mittal Litigation,” Antitrust Law Journal 76, no. 3 (2010): 881. See Elizabeth E. Bailey & William J.
Baumol, “Deregulation and the Theory of Contestable Markets,” 1 Yale J. On Reg. 111, 113 (1984).
3
an antitrust offense in and of itself. 15 On the other hand, according to European
Competition Law excessive prices may be considered unfair, and, consequently, an abuse
of dominance.16
The diverse approach towards excessive pricing is a consequence of a major
divergence between American and European Competition Laws concerning the scope of
antitrust law. Indeed, the former focuses on how monopoly power is achieved when
proscribing “monopolization”, while the latter condemns a wrongfully use of monopoly
power which might be deemed as “abusive”. In other words, European Competition Law
prohibits abusive behaviour by dominant firms that might either exclude competitors or
exploit consumers and not only conducts that lead to a monopoly, as is the case of
American Antitrust Law.17 Such difference is a result of profoundly diverse assumptions.
In fact, European Competition Law assumes that markets are not always self-correcting.
For this reason, Competition Law might be the proper tool for addressing the harmful
consequences of monopoly power. 18 In contrast, American Antitrust Law is based on a
more market-confident approach, according to which market forces are effective enough to
dismantle dominant positions without the need of intervention. 19 Furthermore, even if
market forces were not, effective enough, courts would be ill-suited to become price
regulators.20
15
Areeda, Kaplow, and Edlin, Antitrust Analysis, 396. (“At this point in time, courts and commentators
are in uncommon accord that monopolization entails something more than monopoly. Monopolization
requires undesirable exclusionary conduct”).
16 See Miguel de la Mano, Renato Nazzini, and Hans Zenger, “Article 102,” in The EU Law of
Competition, ed. Jonathan Faull and Ali Nikpay, 3rd ed. (Oxford, UK: Oxford University Press, 2014), 512–
23.
17 In Fox’s and Crane’s words: “One way to understand the issue in a snapshot is to look at the different
words the US and EU use in Section 2 of the Sherman Act and Article 102 of the TFEU respectively. The US
refers to "monopolization" which implies a wrongful act in obtaining monopoly power. The EU refers to
"abuse of dominance," which implies an abusive act with respect to the exercise of monopoly power. Eleanor
M. Fox and Daniel A. Crane, Global Issues in Antitrust and Competition Law (St. Paul, MN: Thomson/West,
2010), 96.
18 Pierre Larouche and Maarten Pieter Schinkel, “Continental Drift in the Treatment of Dominant Firms:
Article 102 TFEU in Contrast to § 2 Sherman Act,” Social Science Research Network no. ID 2293141 (2013):
13, http://papers.ssrn.com/abstract=2293141 (accessed July 15, 2014). See also Gal, “Monopoly Pricing as an
Antitrust Offense in the U.S. and the EC.”
19 As the U.S. Supreme Court has stated: “The mere possession of monopoly power, and the concomitant
charging of monopoly prices, is not only not unlawful; it is an important element of the free-market system.
The opportunity to charge monopoly prices—at least for a short period—is what attracts “business acumen”
in the first place; it induces risk taking that produces innovation and economic growth. To safeguard the
incentive to innovate, the possession of monopoly power will not be found unlawful unless it is accompanied
by an element of anticompetitive conduct”. Verizon Communications, Inc. v. Trinko LLP, 157 L. Ed. 2d 823,
836 (2004). Likewise, in Berkey Photo, Inc. v Eastman Kodak Co., the Court of Appeals for the Second
Circuit said, “Setting a high price may be a use of monopoly power, but it is not in itself anticompetitive…
Judicial oversight of pricing policies would place the courts in a role akin to that of a public regulatory
commission”.
20 Gal, “Monopoly Pricing as an Antitrust Offense in the U.S. and the EC,” 355–57.
4
However, this contrast is not so perceptible in practice. In fact, whereas the text of
Art. 102 TFEU and the jurisprudence provide grounds for intervention, the European
enforcement practice, in both the communitarian and the national levels, reveals a limited
number of cases involving excessive pricing. 21 As Ezrachi and Gilo note, “[t]he small
number of cases … reflects the practical difficulties in establishing the excessiveness of the
price, the notion that excessive prices are often self-correcting and the fear that prohibition
risks chilling investment incentives”.22 Still, enforcers23 and guidelines24 have recognised
that excessive pricing cases might make sense under certain circumstances.
The case against excessive pricing is not an easy one. There are several strong
reasons why intervention must be carefully analysed. However, a non-intervention policy is
21
At the Communitarian level see e.g., Sierna v. Eda [1971] ECR 69; Case 26/75 General Motors v.
Commission [1975] ECR 1367; Case 27/76 United Brands v. Commission [1978] ECR 207; Case 30/87
Corinne Bodson v. Pompes Funebres [1998] ECR 2479; Case 110/99 Lucazeau v. SACEM [1989] ECR 2811;
see also Commission Decisions: COMP/C-1/36.915 British Post office v. Deutche Post AG [2001] OJ
L331/40, COMP/A 36.568/D3 Scandlines Sverige AB v. Port of Helsingborg [Jul 23, 2004]. At the national
level: the Danish Competition Appeal Tribunal decision of Nov. 14, 2006, concerning Elsam A/S (alleged
excessive pricing in the West Denmark market for electricity); Order of the Hungarian Competition Council
of Apr. 2007, concerning termination of proceedings against a power supplier company which allegedly
charged excessive prices (Vj-156/2005); The Belgian Competition Council decision No.2006–I/O-12 of Aug.
31, 2006 concerning commitments from the company “Banksys” to freeze the prices for electronic payment
services; The Latvian Administrative District Court decision of Feb. 25, 2005, Case No.A42129604 (Olaines
k¯ udra) rejecting allegations of excessive pricing by the Riga Stock Exchange; The Dutch Competition
Authority (NMa) finding excessive pricing by Interplay (case 2910/Interpay, Apr. 2004). OFT CA98/2/2001
Napp Pharmaceutical Holdings Ltd, on appeal: Napp Pharmaceutical Holdings Limited and Subsidiaries v.
Director General of Fair Trading (Case No. 1001/1/1/01, Jan. 2002). Cited by Ezrachi and Gilo, “Are
Excessive Prices Really Self-Correcting?,” n. 8 and 12.
22 Ibid., 253.
23 For instance, Philip Lowe, former Director General DG Competition, in a speech noted the general
prioritization policy and special circumstances that might justify antitrust intervention: (“As regards
exploitative practices, we are obviously aware that in many markets intervention by a competition authority
will not be necessary. We are also aware that it is extremely difficult to measure what constitutes an excessive
price. In practice, most of our enforcement focuses therefore as in the US on exclusionary abuses, i.e. those
which seek to harm consumers indirectly by changing the competitive structure or process of the market. It is
not in our power to change the Treaty. And, in my view, we should continue to prosecute such practices
where the abuse is not self-correcting, namely in cases where entry barriers are high or even insuperable. It
probably makes also sense to apply those provisions in recently liberalised sectors where existing dominant
positions are not the result of previous superior performance. Philip Lowe, “How Different is EU Anti-Trust?
A Route Map for Advisors – An Overview of EU Competition Law and Policy on Commercial Practices,”
(presented
at
ABA
2003
Fall
Meeting,
Brussels,
2003),
4–5,
http://ec.europa.eu/competition/speeches/text/sp2003_038_en.pdf.
24 This reality is acknowledged in the United Kingdom Office of Fair Trading Guidelines on Assessment
of Individual Agreements and Conduct: “The Director General will be mindful of the need not to interfere in
natural market mechanisms where high prices will encourage new entry or innovation and thereby increase
competition. In such markets, excessive prices will be regarded as an abuse only where it is clear that high
profits will not stimulate successful new entry within a reasonable period”[…] Excessive prices may be
considered to be an abuse only if they have persisted in the absence of continuing successful innovation
and/or without stimulating successful new entry or a significant loss of market share”. Office of Fair Trading,
Competition Act Guideline, Assessment of Individual Agreements and Conduct, 1999, para. 2.13 and 2.19.
Emphasis added.
5
commonly led by misperceptions on the merits of antitrust intervention. In addition to the
practical difficulties that a prohibition of excessive pricing involves, the discussion
concerning antitrust intervention in a manner perceived to pursue quasi-regulatory
objectives is ideologically charged. Because of this, a balanced analysis is particularly
helpful for small economies, where the abilities of markets to self-correct are not as
effective as in big economies. Certainly, the practical difficulties concerning antitrust
intervention are a challenging issue to deal with. Yet, it is important to distinguish those
practical difficulties from the ideological reasons that tend to overstate the former. Besides,
even when hard enforcement is not considered as the appropriate tool for addressing
excessive pricing claims, competition authorities may well look into other tools for
improving markets’ outcomes. Indeed, the actual defence and promotion of competitive
markets goes beyond a mere ex-post control of market power, and usually involves a wide
set of enforcement strategies.25
In the next section I will develop an excessive pricing concept as an antitrust
concern. As prices above marginal cost are the general rule in markets, a legal standard has
to identify particularities that justify a special treatment. I will then refer to the reasons that
are often indicated to dispute antitrust intervention and subsequently to the arguments that
support a more interventionist approach.
III. THE THEORY: EXCESSIVE PRICING
A. The Concept
Temporarily high prices are a normal feature of market economies. Indeed, firms
compete to gain market power and by doing so they invest and pursue cost efficiency and
innovation. This is the well-known economic reason that competition law does not censure
market power in and of itself. In fact, market power has a double significance. On the one
hand, from a static view, it opposes to perfect competition and, therefore, causes
inefficiencies and consumer harm. Yet, from a dynamic standpoint, it might be vital for the
development of innovation. 26 In reality, firms exercise their market power most of the
times they operate in the market. For this reason, a legal standard based on a mere price25
These strategies vary from ex ante advocacy, to criminal prosecution, with numerous strategies in
between, such as market studies, the use of administrative guidelines and negotiated settlement procedures.
See Dunne, “Between Competition Law and Regulation”; Spencer Weber Waller, Prosecution by Regulation:
The Changing Nature of Antitrust Enforcement, SSRN Scholarly Paper (Rochester, NY, 1999),
http://papers.ssrn.com/abstract=144149 (accessed February 3, 2015). More generally, See Ian Ayres and John
Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (New York; Oxford: Oxford
University Press, 1995), 35.
26 Justice Scalia’s words in Trinko are well-known. See note 19. Yet, as Baker has clearly explained
“Justice Scalia could have made his economic point about the role of appropriability as a spur to innovation
without referencing monopolies, and he could have noted that competition also spurs innovation. By not
formulating his argument this way, Justice Scalia’s rhetoric appears to welcome or defend monopolies”.
Jonathan B. Baker, Taking the Error Out of “Error Cost” Analysis: What’s Wrong with Antitrust’s Right,
SSRN Scholarly Paper (Rochester, NY, 2014), 16 (note 53), http://papers.ssrn.com/abstract=2333736
(accessed February 5, 2015).
6
cost difference27 would not only lack economic sense, but also would be impracticable to
administrate in an objective and effective manner.
The European case law has provided influential ideas about the concept of excessive
pricing and the conditions under which such conduct should be condemned. In United
Brands28, the European Court of Justice (ECJ) broadly defined an excessive price as a price
that has no relation to the economic value of the product (or service) supplied; 29 a
definition consistently echoed by regulators, courts and legislators. 30 In order to implement
this standard the Court set down a twofold test: (1) to determine whether the difference
between the costs actually incurred and the price actually charged is excessive; and, if it
actually is (2) to consider whether the price imposed is either unfair in itself or when
compared to competing products.31
However, the Court did not provide guidelines about what level of margin is
excessive; when an excessive price would be deemed unfair; or what costs should be taken
into account when measuring margins. 32 Furthermore, the reference to the “economic
value” of products is particularly ambiguous.33 In fact, in economic terms “value” is what
costumers are willing to pay for a product. If a monopolist charges more than the value of a
product, consumers will not buy it. What a monopolist can do, however, is exploit its
consumers’ willingness to pay. Hence, monopoly price will be higher than the competitive
price, but lower (or equal) to consumers’ value. In fact, economics show that even in a state
of imperfect competition, consumers’ surplus tends to be positive.34
27 Which is the base of the measurement of market power according to the Lerner Index: M= (Price —
Marginal Cost) / Price. See Scherer and Ross, Industrial Market Structure and Economic Performance, 70.
28 United Brands v. Commission [1978] ECR 207.
29 Ibid., para. 250. (“charging a price which is excessive because it has no reasonable relation to the
economic value of the product supplied is […] an abuse”). This definition is particularly influential. Actually
the South African Competition Act follows it when defining EP. Recent jurisprudence, however, has provided
a more economic concept of what should be considered as an excessive price. In fact, in Port of Helsingborg
the Commission stated that the economic value of a product or service cannot simple be determined by
approximate costs incurred in the provision of the product or service … a profit margin which would be a predetermined percentage of the product costs. [Rather, the] economic value must be determined with regards to
the particular circumstances of the case and take into account also non-cost factors such as the demand for the
product/service. Scandlines Sverige AB v. Port of Helsingborg [2006] (2006) 23 [232].
30 Ezrachi and Gilo, “Excessive Pricing, Entry, Assessment, and Investment: Lessons from the Mittal
Litigation,” 884.
31 United Brands v. Commission [1978] ECR 207 at [250–52].
32 See in general, Miguel de la Mano, Renato Nazzini, and Hans Zenger, “Article 102,” 514.
33 On costs, prices and demand and how particularly important the demand is for determining the prices of
goods see Frank Verboven, “International Price Discrimination in the European Car Market,” The RAND
Journal of Economics 27, no. 2 (1996): 240–68. (i.e. while we might think that Fiat cars are cheaper in Italy
because costs should be lower, in reality Fiat cars are more expensive in Italy because consumers value them
more).
34 Unless there is perfect price discrimination, see Jean Tirole, The Theory of Industrial Organization
(Cambridge, MA.: The MIT Press, 1998), 67. Cited by Ezrachi and Gilo, “Excessive Pricing, Entry,
Assessment, and Investment: Lessons from the Mittal Litigation,” 884.
7
Excessive prices that raise a reasonable concern are those that occur in the absence
of effective competitive constraints. Indeed, where there is price discipline due to
competitive pressure the market should tend to self-correct and intervention would not be
justified. This is what the United Brands holding refers to as “normal and sufficiently
effective competition”. Certainly, one should not expect the outcomes of perfectly
competitive markets, but outcomes that would be expected from competitive behaviour,
where there is rivalry between firms rather than unilateral exercise of market power. 35
When high prices are persistent over time, one might well assume either that high prices do
not signal to uninformed potential entrants that the incumbent is inefficient or that the postentry price deters entry. For these reasons, excessive pricing might be defined as prices
significantly and persistently higher than those that had prevailed under viable
competition.36
This characterization is useful because it highlights two important features that can
distinguish excessive prices that might be considered as an antitrust concern from mere
high prices. Indeed, the requirement of significance minimizes mistakes concerning the
assessment of excessiveness, and the condition of persistence is fulfilled only when the
market cannot self-correct. However, jurisdictions may differ about the degree and time
that amount to be permissible. In fact, while it is clear that it should not be understood as a
reference to perfect competition 37 , jurisdictions might have different conceptions about
how imperfect competition is envisaged by this legal standard.38 Although these concepts
are open-textured, they are helpful enough to draw a normative concept, which will be
complemented by the prioritization efforts of the competition authorities.
In what follows, I review the arguments in favour and against antitrust intervention.
My aim is to show that when all strong arguments are considered together, the conclusion
is a more balanced approach that acknowledges the risks that price intervention might
cause; the practical difficulties that excessive pricing cases involve; but also the economic
soundness of intervention under special circumstances and the fact that there might be
diverse strategies that competition authorities can utilize to address excessive pricing
35
See Simon Roberts, “Assessing Excessive Pricing: The Case of Flat Steel in South Africa,” Jnl of
Competition Law & Economics 4, no. 3 (2008): 874.
36 See Robert O’Donoghue and A. Jorge Padilla, The Law and Economics of Article 102 TFEU, 2 edition
(Oxford: Hart Publishing, 2013), 736. (“Economists define excessive prices as those which are set
significantly and persistently above the competitive level”). See also Miguel de la Mano, Renato Nazzini, and
Hans Zenger, “Article 102,” 520. Renato Nazzini, “Abuse Beyond Exclusion:
Exploitation and
Discrimination Under Article 102 TFEU,” in International Antitrust Law & Policy: Fordham Competition
Law 2012, ed. Barry E. Hawk (New York: Juris Publishing, Inc., 2013), 461.
37 See Simon Bishop and Mike Walker, The Economics of EC Competition Law: Concepts, Application
and Measurement (Sweet & Maxwell/Thomson Reuters, 2010), 16. (“While both the models of perfect
competition and monopoly provide a useful starting point for analysing the effectiveness of competition,
neither of them provides a sound basis for policy decisions”).
38 Ezrachi and Gilo, “Excessive Pricing, Entry, Assessment, and Investment: Lessons from the Mittal
Litigation,” 885.
8
problems. Those special circumstances should be particularly considered by small
economies, where the self-correcting ability of markets is more limited.
B. Arguments against intervention
Excessive prices are self-correcting. The first and most common argument against
intervention is that excessive prices are self-correcting. As Ezrachi and Gilo note, this
thesis is based on two sub-arguments: (i) firstly, excessive prices attract new entry (when
entry is profitable) and (ii) secondly, because of the prospects of new entry, dominant firms
will lower prices and refrain from charging excessive prices”. 39 Consequently, in the
absence of barriers to expansion and entry, dominant firms will not tend to price
excessively ex-ante in order to keep their dominant position. If they do so, new competitors
will enter the market and prices will drop. This argument dominates the literature40 and the
case law.41 Yet, as I will detail in the next section, its validity is quite restricted. Hence, it
should not serve to justify non-intervention.42
Price control lessens incentives to invest. Temporarily high prices are particularly
important in dynamic markets. Where investments and innovation are vital, economic rents
can be understood as the ex post reward of the market for ex ante competition to innovate.43
Firms invest and innovate because they are able to appropriate the benefits from their risky
investments. For this, price control may distort incentives to innovate and might lessen the
creative-destructive ability of markets.44
This argument is a legitimate concern, but its scope is restricted. Firstly, it applies to
specific kinds of industries (those dynamic markets where innovation takes place).
Secondly, it is important to distinguish this apprehension from the position that monopolies
39
Ezrachi and Gilo, “Are Excessive Prices Really Self-Correcting?” 254.
For instance, Whish and Bailey, Competition Law, 718–19. (“[…] if normal market forces have their
way, the fact that a monopolist is able to earn large profits should, in the absence of barriers to expansion and
entry, attract new entrants to the market. In this case the extraction of monopoly profits will be self-defeating
in the long run and can act as an important economic indicator to potential entrants to enter the market. If one
accepts this view of the way that markets operate, one should accept with equanimity periods during which a
firm earns a monopoly profit: the market will in due course correct itself, and intervention by the competition
authorities will have the effect of undesirably distorting this process”).
41 See i.e. Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 274 (2d Cir. 1979).
42 Ezrachi and Gilo, “Excessive Pricing, Entry, Assessment, and Investment: Lessons from the Mittal
Litigation,” 879: “the “self-correcting” reasoning should not serve to justify non-intervention”.
43 Massimo Motta and Alexandre de Streel, “Excessive Pricing in Competition Law: Never Say Never?”
in The Pros and Cons of High Prices, ed. Konkurrensverket Swedish Competition Authority (Stockholm,
2007),
18,
http://www.konkurrensverket.se/upload/Filer/Trycksaker/Rapporter/Pros&Cons/rap_pros_and_cons_high_pri
ces.pdf; Miguel de la Mano, Renato Nazzini, and Hans Zenger, “Article 102,” 512; Damien Geradin, The
Necessary Limits to the Control of “Excessive” Prices by Competition Authorities - A View from Europe,
SSRN Scholarly Paper (Rochester, NY, 2007), http://papers.ssrn.com/abstract=1022678 (accessed July 27,
2014).
44 In Schumpeter’s words. See Joseph A. Schumpeter, Capitalism, Socialism and Democracy (London:
Routledge, 1994), chap. 7.
40
9
favour innovation. Whereas it is well known that dynamic efficiencies are vital for the
development of economies (and they tend to be considered more important than static
efficiencies), 45 innovation may also arise from other sources (such as pre-innovation
product-market competition, which firms can seek to escape through innovation, and
competition in innovation itself).46
Excessive prices are too difficult to assess. In general, when a company with market
power operates in the market, it charges a price higher than marginal cost. “The question,
therefore, is where to draw the line”.47 To resolve if a price actually charged is “excessive”
causes two major difficulties. Firstly, to decide which of the dominant’s firm costs should
be considered for the analysis. Secondly, to determine what level of profit margin is
acceptable. 48 The natural comparison with perfect competition leads to assess
excessiveness on the grounds of marginal costs, yet marginal costs raise complications. For
example, in dynamic industries innovation generates very high fixed costs, however once
the innovative product or service is already in the market marginal costs tend to be very
low, sometimes close to zero. In such cases, an analysis based on marginal cost would not
consider R&D costs properly.49 These difficulties do not apply only to dynamic markets,
in fact in static industries cost assessment might be a very complex task as well. A typical
example is the measurement of common costs in multi-product firms. 50 Even when a
proper methodology for cost assessment has been identified, the range of acceptable margin
is still subject to debate. This is the most challenging obstacle, and might justify limited
intervention or non-intervention on a case-by-case basis.51
It is impracticable to set a workable legal standard. The difficulties mentioned
above show that it is quite complex to translate policy into a sufficiently realistic legal
test.52 According to Evans and Padilla, “[t]here is no price-cost or profitability benchmark
rule that implements [excessive pricing test] in a manner that satisfies the following two
conditions: (a) objectivity and (b) efficiency”. 53 In their view, an objective rule yields
predictable outcomes and ensures legal certainty. To be objective a rule must satisfy three
conditions: (1) specify what measure of price and profit would be employed in the analysis;
45
See Herbert Hovenkamp, “Restraints on Innovation,” Cardozo L. Rev. 29 (2007): 247–60.
See Jonathan B. Baker, “Beyond Schumpeter vs. Arrow: How Antitrust Fosters Innovation,” Antitrust
Law Journal 74, no. 3 (2007): 575–602; Baker, Taking the Error Out of “Error Cost” Analysis, 15.
47 Miguel de la Mano, Renato Nazzini, and Hans Zenger, “Article 102,” 512.
48 See Geradin, The Necessary Limits to the Control of “Excessive” Prices by Competition Authorities - A
View from Europe, 7–10.
49 Ibid., 7–8.
50 See Whish and Bailey, Competition Law, 719; Geradin, The Necessary Limits to the Control of
“Excessive” Prices by Competition Authorities - A View from Europe, 8.
51 Ezrachi and Gilo, “Excessive Pricing, Entry, Assessment, and Investment: Lessons from the Mittal
Litigation,” 884.
52 Whish and Bailey, Competition Law, 719.
53 Evans and Padilla, “Excessive Prices: Using Economics to Define Administrable Legal Rules,” 110.
46
10
(2) identify an unambiguous and workable comparator; and (3) define a critical threshold
for the price or profit variable. To be efficient the benchmark rule must find prices
excessive only when they reduce the static and dynamic efficiency of the market.54
This is also a reasonable concern, yet not an exclusive feature of excessive pricing
cases. Indeed, one should consider that there are also other antitrust issues that necessitate
complex assessments, such as predatory pricing, margin squeeze and resale price
maintenance. 55 Of course, complexity entails risks and costly litigation, yet nonintervention might be costly as well.
There is no appropriate remedy. Antitrust authorities can find a price is abusive and
impose a fine. But how could then competition authorities remedy high prices? One might
think that fines might lead the firm to stop charging excessive prices, because if the firm
does not remedies its pricing policy the antitrust authority will file a complaint claiming
recidivism. Certainly, this statement is too simple for most cases because in general there
will be a wide grey area regarding price fairness. Moreover, in general competition
authorities are hesitant to tell the dominant firm what the non-excessive price is unless they
are willing to regulate prices or margins.56 Motta and de Streel emphasize that this kind of
regulation would be difficult to implement and would not solve the problem forever
because intervention would be occasional. Moreover, competition authorities have no
experience and no role in regulating prices.57 While this view is right regarding the first
statement (because excessive pricing problems are often due to structural issues), the last
argument depends largely on the institutional design of each competition regime and the
actual institutional cooperation with sector-regulators. Furthermore, other remedies exist as
well, as I will note in the next section.
C. Arguments in Favour of Intervention
In light of the aforementioned complications, competition authorities have tended to
prioritize the prosecution of exclusionary abuses and leave the correction of consumer
exploitation to market forces. 58 Interestingly, this approach prioritizes prophylactic
54
Ibid., 110–11.
Ezrachi and Gilo, “Excessive Pricing, Entry, Assessment, and Investment: Lessons from the Mittal
Litigation,” 893.
56 In this regard, the words of Emil Paulis are illustrative: (“intervening against excessive pricing may
entail the risk of a competition authority finding itself in the situation of a semi-permanent quasi-regulator.
The authority may have to come back time and again to the pricing of the dominant firm when cost or other
conditions change in the industry, something that a ‘generalist’ competition authority is much less equipped
for than proper regulators with their deep knowledge of and continuous involvement in their industries”).
Emil Paulis, “Article 82 EC and Exploitative Conduct,” (presented at 12th Annual Competition Law and
Policy
Workshop
Robert
Schuman
Centre
EUI,
Florence,
2007),
4,
www.eui.eu/Documents/RSCAS/Research/.../200709-COMPed-Paulis.pdf.
57 Motta and Streel, “Excessive Pricing in Competition Law: Never Say Never?,” 19.
58 See in general, Larouche and Schinkel, “Continental Drift in the Treatment of Dominant Firms”;
Ezrachi and Gilo, “Are Excessive Prices Really Self-Correcting?,” 252–54.
55
11
enforcement, in the sense that it focuses on abuses that lead to a lower degree of
competition and can be expected to result in an exploitative practice, but it limits
intervention in cases of direct consumer exploitation, which seems “paradoxical”.59
However, a firm that has already acquired a dominant position holds immunity from
the normal forces of competition, which allows it to charge excessive prices persistently.
Remarkably, cartels are illegal (and often referred as “the supreme evil of antitrust” 60 )
because cartel members reduce output, raise prices and hinder innovation. Yet, monopolies
produce the same effects and are more stable than cartels. Indeed, the fact of charging
excessive prices “embodies the ultimate expression of an abuse of dominance –immunity
from competitive forces and their corrective effects”. 61 Certainly, intervention might be
risky and entails complex analysis of several issues. However, “[a]rguments that price
regulation is always inappropriate or impossible to implement are overstated”62 and “are
based on misperceptions of what economics can and cannot say about excessive pricing”.63
I will refer to those arguments in the next paragraphs.
Excessive prices are not self-correcting. As Ezrachi and Gilo have shown, high
prices, in and of themselves, do not attract new entry.64 The authors argue that it is the postentry price, and not the pre-entry price that potential entrants consider when deciding
whether to enter the market.65 This is so because incumbents can cut their prices as soon as
a new rival arrives and the potential entrant is aware of this risk.66 For this reason, when
entrants have sufficient information about the relative efficiency (or advantages) of
incumbents, it is the expected post-entry price and not the pre-entry price that affects the
entrant’s decision to enter the market. 67 Pre-entry prices can, however, signal to
uninformed entrants whether the incumbent is inefficient, thereby at times attracting
59
Bruce Lyons, “The Paradox of the Exclusion of Exploitative Abuse,” in The Pros and Cons of High
Prices,
by
Konkurrensverket
Swedish
Competition
Authority
(Stockholm,
2007),
65,
http://www.konkurrensverket.se/upload/Filer/Trycksaker/Rapporter/Pros&Cons/rap_pros_and_cons_high_pri
ces.pdf. (“European Commissioner Neelie Kroes kicked off the current major review of Article 82 by saying:
‘it is sound for our enforcement policy to give priority to so-called exclusionary abuses, since exclusion is
often at the basis of later exploitation of customers’. This is a common position to hear in policy circles, but it
is inherently paradoxical. If exclusionary abuses are bad because they ultimately exploit consumers, why
should the policy emphasis not be on directly exploitative abuses?”).
60 Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 US 398 (Supreme Court
2004). (“[…] compelling negotiation between competitors may facilitate the supreme evil of antitrust:
collusion.”).
61 O’Donoghue and Padilla, The Law and Economics of Article 102 TFEU, 735.
62 Niels, Jenkins, and Kavanagh, Economics for Competition Lawyers, 281. Emphasis added.
63 Ibid., 280.
64 Ezrachi and Gilo, “Are Excessive Prices Really Self-Correcting?,” 255.
65 Ibid.
66 Ibid. “Once the incumbent detects the first steps of entry, it is expected to react immediately, and the
resulting price war is expected to bring prices down to competitive levels very quickly”.
67 Ibid., 256.
12
entry.68 Hence, entry will occur only when the entrant knows it is more efficient than the
incumbent. This dynamic interaction is a flaw within the theory of contestable markets,
which assumes the incumbents do not react to entry by cutting prices in order to keep their
market share.69 Actually, such reaction might be main deterrent for entrants.
Excessive pricing might lessen both short-term and long-term welfare. Another
frequent argument against intervention is that price control benefits consumers in the short
run with lower prices, but harms consumer in the long run by lessening investment
incentives. While price intervention might distort incentives ex-ante, the presence of
significant entry barriers allows the harm to remain in the long term and may lead to both
static and dynamic inefficiencies. 70 In fact, the unconstrained power to charge supracompetitive prices in the long term may reduce the incentives of the dominant firm to
increase its own productive efficiency and to invest in product improvements71.
Dominance does not necessarily arise from competitive forces. Where a firm has
acquired a dominant position due to competition on the merits, intervention might lead to
undesired ex-ante incentives on investment and innovation. However dominance might
result from forces other than competition.72 That is the case of dominant undertakings that
either enjoy exclusive or special rights granted by the State or were former legal
monopolies.73 Intervention in those markets should not tend to distort ex-ante incentives
and may be useful to avoid welfare losses if there is no prospect of market forces removing
or eroding a monopoly position.74
Economics provide several methods to analyse when prices are excessive. The
appraisal of excessiveness is the most challenging obstacle concerning excessive pricing
cases. Economic theory provides numerous techniques to measure price “excessiveness”.
Certainly, some of these benchmarks are more robust than others, yet their applicability
depends largely on the nature of the available evidence in each case. Those methods might
be broadly classified as: (i) price-cost comparisons; (ii) price comparisons across customers
or geographical markets; (iii) geographic price comparisons; (iv) comparisons with
competitors’ prices and (v) comparisons over time. 75 These benchmarks are not
68
Ibid., 257.
Ezrachi and Gilo, “Excessive Pricing, Entry, Assessment, and Investment: Lessons from the Mittal
Litigation,” 881.
70 Miguel de la Mano, Renato Nazzini, and Hans Zenger, “Article 102,” 518.
71 Nazzini, “Abuse Beyond Exclusion: Exploitation and Discrimination Under Article 102 TFEU,” 463.
72 See Miguel de la Mano, Renato Nazzini, and Hans Zenger, “Article 102,” 519; Nazzini, “Abuse
Beyond Exclusion: Exploitation and Discrimination Under Article 102 TFEU,” 466–70.
73 British Leyland v. Commission [1986] ECR 3263; Corinne Bodson v. Pompes Funebres [1998] ECR
2479.
74 Niels, Jenkins, and Kavanagh, Economics for Competition Lawyers, 280.
75 See O’Donoghue and Padilla, The Law and Economics of Article 102 TFEU, 748; Miguel de la Mano,
Renato Nazzini, and Hans Zenger, “Article 102,” 519–22; Damien Geradin, Anne Layne-Farrar, and Nicolas
Petit, EU Competition Law and Economics (Oxford, U.K: Oxford University Press, 2012), 276–80; Massimo
69
13
incompatible with each other. Actually, multiple benchmarks should be applied in parallel
when possible in order to achieve a robust result that minimises errors.76
(i) The price-cost benchmark. The first benchmark consists of comparing the price
and the costs of the product or service. According to this method it is possible to
determine margins but not to appraise the merit (or fairness) of such margins. It is
advisable to use this method only as a first step because there are several issues that
arise with this method, such as the choice of the proper cost measure, the definition of
a reasonable profit margin, the treatment of common costs in multi-product firms, and
the provision of incentives for firms to reduce their costs.77 While this method is not
conclusive on its own to condemn a firm’s pricing policy, it might be useful to
dismiss unfounded claims.
(ii) Discrimination benchmarks. A more sophisticated alternative is to compare the
prices charged by the dominant firm in the relevant market with those prices that it
charges to different customers in the same geographic market or in other geographic
markets that face a different competitive level. The comparison provides a basis to
consider lower margins as a “reasonable” profit. Thus, prices are excessive if the
lower prices are profitable and the price-difference has no justification, such as
production or supply costs. 78 Price discrimination benchmarks are very useful to
resemble the doctrinal definition of excessive prices. In fact, a plausible way to
determine what price the dominant firm would have charged under competition is to
analyse what price the firm is charging in markets where it is not dominant.79
However, care must be taken to apply a discrimination benchmark, since a
discriminatory pricing policy might be welfare enhancing.80 If firms know that price
discrimination may expose them to excessive pricing claims, they might just refrain
from such pricing policy, consequently decreasing social welfare where
discrimination expanded output.81
(iii) The geographical benchmark. This method compares the prices of the dominant
firm with those of other firms that operate in a different geographic market. In
Motta and Alexandre de Streel, “Excessive Pricing and Price Squeeze under EU Law,” in European
Competition Law Annual 2003: What is an Abuse of a Dominant Position, ed. Claus-Dieter Ehlermann and
Isabela Atanasiu (Oxford; Portland, Ore.: Hart Publishing, 2006), 93–104; Roberts, “Assessing Excessive
Pricing.”
76 See O’Donoghue and Padilla, The Law and Economics of Article 102 TFEU, 748.
77 See Ibid., 749.
78 See Roberts, “Assessing Excessive Pricing,” 874–75.
79 See Miguel de la Mano, Renato Nazzini, and Hans Zenger, “Article 102,” 521.
80 See Scherer and Ross, Industrial Market Structure and Economic Performance, chap. 13; O’Donoghue
and Padilla, The Law and Economics of Article 102 TFEU, chap. 15; Tirole, The Theory of Industrial
Organization, chap. 3.
81 Miguel de la Mano, Renato Nazzini, and Hans Zenger, “Article 102,” 521.
14
Corinne Bodson v Pompes funèbres, 82 the ECJ compared the prices of the
monopolized market of “external services” for funerals with the prices of similar
products in markets considered as relatively competitive. In doing so, the ECJ
determined that since more than 30,000 communes in France had not granted
exclusive concessions but had left the services unregulated or operated it themselves,
it was possible to make a comparison between the prices charged by undertakings
with exclusive concessions and other undertakings. According to the ECJ “[s]uch a
comparison could provide a basis for assessing whether or not the prices charged by
the concession holders are fair”. 83 In Port of Helsingborg, 84 the Commission
considered that it was not appropriate to compare profit levels between different ports
in order to ascertain whether charges imposed by Helsingborg were excessive.
Among other reasons, the Commission noted that each port differed substantially
from the others in terms of its mix of activities, the volume of its assets and
investments, the level of revenues, and the cost of each activity.
(iv) The competitors benchmark. This method consists of comparing the prices
charged by the dominant company with those charged by its competitors. General
Motors85 and United Brands86 are leading examples where this method was put into
practice. However, price differences may be due to product quality, distribution costs,
or pricing strategy.87 For instance, an entrant might price aggressively to gain market
share and then raise its prices.88 Besides, the presence of competitors might suggest
that the market is subject to competitive constraints, which is considered an important
requirement for intervention.89
(v) The historical benchmark. Comparisons over time are another method to
determine whether a price is unfair. In this regard British Leyland90 is a leading case.
British Leyland held a legal monopoly to issue national certificates of conformity for
vehicles in Great Britain. The Court undertook a comparison between the historical
prices of the dominant firm and the prices it charged in the past and found that the
fees had increased 600% during the relevant period. Thus, the Court considered they
82
Corinne Bodson v. Pompes Funebres [1998] ECR 2479.
Ibid., para. 31.
84 Case COMP/A.36.568/D3, Scandlines Sverige AB v Port of Helsingborg, Commission Decision of 23
July 2004.
85 Case 26/75 General Motors Continental v Commission [1975] ECR 1367.
86 United Brands v. Commission [1978] ECR 207.
87 See Miguel de la Mano, Renato Nazzini, and Hans Zenger, “Article 102,” 521; O’Donoghue and
Padilla, The Law and Economics of Article 102 TFEU, 752; Geradin, The Necessary Limits to the Control of
“Excessive” Prices by Competition Authorities - A View from Europe, 13.
88 See Geradin, Anne Layne-Farrar, and Nicolas Petit, EU Competition Law and Economics, 278.
89 See Geradin, The Necessary Limits to the Control of “Excessive” Prices by Competition Authorities - A
View from Europe, 13.
90 British Leyland v. Commission [1986] ECR 3263.
83
15
were abusive. In that case, it was clear that the increase in fees was not justified by an
increase in costs, but was an attempt by British Leyland to prevent parallel trade in
motor vehicles.
It is important to highlight that commentators91 and competition authorities92 have
suggested focusing enforcement on cases where excessive prices are “significantly” above
the competitive level and to use as many benchmarks as possible, in order to minimize error
costs 93. As O’Donoghue and Padilla have noted, “an important common feature of cases in
which excessive prices have been found is that the price was not merely above the relevant
benchmark, but was significantly above it”. 94 As pointed out by Geradin, a common
thread to all the European cases concerning excessive pricing is that prices had exceeded
costs by more than 100%. Interestingly, the same standard has been followed in German
jurisprudence95 and Dutch case law.96
Price regulation is not the only remedy available. As Motta and de Streel remark,
“excessive price abuse is associated with price regulation remedy. However, the two
questions should be kept separate as other remedies exist”.97 According to these authors,
since excessive pricing is more a problem in the structure of the market than in the
behaviour of the firm, the appropriate remedy should consist of changing the market
structure for the future and the specific remedy will depend on the cause of the excessive
price. Hence, if excessive prices are due to a combination of strong past market power and
consumer inertia, the best remedy would be to encourage consumers to switch towards less
expensive offers of new entrants. If high prices are due to important strategic entry barriers,
91
See i.e. O’Donoghue and Padilla, The Law and Economics of Article 102 TFEU, 755.
OFT. Assessment of Conduct, Office of Fair Trading Draft Competition Law Guideline For
Consultation (April 2004) para. 2.6.
93 See i.e. Motta and Streel, “Excessive Pricing in Competition Law: Never Say Never?,” 43;
O’Donoghue and Padilla, The Law and Economics of Article 102 TFEU, 755; Miguel de la Mano, Renato
Nazzini, and Hans Zenger, “Article 102,” 521. Interestingly, the German Competition Act uses this definition
to refer to unfair prices § 19, Section 4, No 2 GWB) see Hans-Jürgen Ruppelt, “Abuse Control: Objectives,
Restrictive Practices and Institutions,” in European Competition Law Annual 2003: What is an Abuse of a
Dominant Position, ed. Claus-Dieter Ehlermann and Isabela Atanasiu (Oxford; Portland, Ore.: Hart
Publishing, 2006), 136.
94 O’Donoghue and Padilla, The Law and Economics of Article 102 TFEU, 755.
95 Flugpreisspaltung, Bundesgerichtshof, judgement of 22 July 1999, NVZ 2000, 326 cited by Ibid., 756.
(“Under this approach, a company's pricing policy is abusive, within the meaning of section 19(4) of the
German Act against Restraints of Competition, if its prices significantly exceed the competitive comparison
price”).
96 See Geradin, The Necessary Limits to the Control of “Excessive” Prices by Competition Authorities - A
View from Europe, 27. (“As a rule, the NMa assesses whether a dominant firm’s prices are excessive by
examining “whether there is too great a disproportion between the costs and the price actually charged. To
determine this, the realized return is compared with a measure of the cost of capital. For this, the WACC is
the measure”. … Only if the return is durably and significantly above the cost of capital does the NMa find
that prices are excessive. In a number of cases it has particularly emphasized the need for a durable and
significant excess before an abuse can be found”). Reference omitted.
97 Motta and Streel, “Excessive Pricing in Competition Law: Never Say Never?,” 40.
92
16
the best remedy would be to remove and prohibit such entry barriers. And if excessive
prices are due to important structural barriers, the competition authority should try to
remove the entry barrier, by the means of advocacy if the barrier is of legal nature, or by
imposing vertical restructuring if the barrier is of economic nature. 98 Additionally,
competition authorities can negotiate settlements by which dominant firms might agree to
offer more convenient conditions for customers. Besides, a recent study has noted how
hybridized powers can overcome traditional limitations of antitrust enforcement. 99 Such
powers incorporate elements of competition law and regulation, “creating distinct
instruments of market control pitched between the generalist laissez-faire antitrust approach
of strengthening the market and the sector-specific interventionist regulatory approach of
overreaching it”. 100 Hybridization might shift the focus of investigation to the general
performance of the market and provide remedial powers beyond the conventional antitrust
arsenal.101 For instance, market investigations allow competition authorities to investigate
factors that prevent competition from functioning freely and then take or recommend
actions in order to remedy any adverse effect identified.102
IV. INTERVENTION IN CONTEXT
The prior sections of this work have provided an excessive pricing concept and
reviewed the main arguments in favour of and against antitrust intervention. In what
follows I summarize the decision theoretical approach that tends to be mentioned when
arguing in favour of a per se legality rule concerning excessive pricing. I will highlight that
such an approach considers debatable assumptions to justify a non-interventionist position.
In contrast, when the study considers more realistic assumptions, the conclusion suggests
analysing excessive pricing cases under a rule of reason standard. Next, I review different
tests proposed to determine under which circumstances intervention is socially desirable.
Finally, I refer to special features of small economies and why those particularities deserve
a careful analysis when transplanting foreign standards.
A. The Choice of a Legal Standard and a test
In their influential article, Evans and Padilla 103 adopted a decision theoretical
approach to analyse excessive pricing and rule making. 104 Decision Theory evaluates
98
Motta and de Streel, “Excessive Pricing and Price Squeeze under EU Law,” 40–41.
Dunne, “Between Competition Law and Regulation.”
100 Ibid., 231. Citation omitted.
101 Ibid., 233.
102 This is the case of the Competition and Markets Authority (CMA) in the UK, where the Enterprise Act
2002 provides a market review power that enables the CMA to determine if any existing market features
result in an “adverse effect on competition”. See Ibid., 235.
103 Evans and Padilla, “Excessive Prices: Using Economics to Define Administrable Legal Rules,” 118.
104 “Decision theory sets out a process for making factual determinations and decisions when information
is costly and therefore imperfect” Frederick Beckner III and Steven C. Salop, “Decision Theory and Antitrust
Rules,” Antitrust L.J. 67, no. 1 (1999): 41.).
99
17
antitrust rules based on whether they minimize total social costs, including the costs of false
convictions (type 1 errors); false acquittals (type 2 errors); and the transaction costs that the
use of legal process involves. When it deals with an excessive pricing case, the cost of a
type 1 error is the reduction of incentives to invest and innovate due to the decrease of the
expected rate of return on successful innovations. 105 The cost of a type 2 error is the
welfare loss to consumers (1) who paid more than they would have paid under viable
competition and (2) who were excluded from consumption.106
Evans and Padilla compared a rule of reason rule to a per se legality rule. They
noted that the former may lead to both types of errors (false convictions and false
acquittals), while the latter can only lead to type 2 errors (false acquittals). As per se rules
are easier and cheaper to administer and enforce, a per se legality rule causes less
administrative costs. Hence, in order to determine which rule provides better outcomes for
jurisdictions, one should compare the increased costs of false acquittals under the per se
rule to the additional administrative costs of having a rule of reason standard as well as the
costs of false convictions from applying that standard. 107 Given that (1) competition
authorities and courts cannot distinguish efficient and inefficient high prices and that (2)
high prices are generally efficient, a per se legality standard is socially desirable. 108 In
order to reach this conclusion, the authors assumed that legal standards apply to all
industries and cases alike and also that market forces eliminate excess profits in a
reasonable period of time when barriers to entry are not high.109
Can courts and regulators distinguish accurately
welfare enhancing from welfare reducing prices?
Does price above cost
generally
lead
to
inefficient outcomes?
Yes
No
No
Rule of reason
Per se legality
Yes
Modified per se illegality
Per se illegality
Table 1. The choice of the legal standard according to Evans and Padilla110
However, when the authors do not assume that legal standards apply to all industries
and cases alike, they suggest a more flexible standard that allows discrimination on a case-
105
Evans and Padilla, “Excessive Prices: Using Economics to Define Administrable Legal Rules,” 114.
Ibid.
107 Ibid., 118.
108 Ibid. “it is better to approve all prices than to risk prohibiting many efficient pricing strategies only to
catch a few harmful ones”.
109 Ibid., 115. “The argument here is that with low barriers to entry, market forces can be relied upon to
eliminate excess profits in a reasonable period of time, thus increasing the cost of intervention relative to its
benefits”.
110 Ibid., 119.
106
18
by-case basis.111 In their view, it might be preferable to adopt an interventionist approach
when (1) the firm enjoys a near monopoly position in the market, which is not the result of
past investments or innovations and which is protected by insurmountable legal barriers to
entry; (2) the prices charged by the firm widely exceed its average total costs; and (3) there
is a risk that those prices may prevent the emergence of new goods and services in adjacent
markets.112
Evans’ and Padilla’s work is notable and influential. Indeed, it provides a
comprehensive understanding of error costs and provides a coherent proposal for
exceptional intervention. However, the test is too strict and overstates market forces’ ability
to erode the positions of monopoly power. Indeed, the requirements of insurmountable
legal barriers to entry protecting a near monopoly position and the risk of preventing the
emergence of new goods and services in adjacent markets restrict considerably the scope of
intervention. Concerning market structure and entry barriers, de facto monopolies and
natural monopolies are, in substance, likened to a legal monopoly. One may argue that a
legal monopoly deserves special concern because it is unlikely to disappear thanks to the
legal protection. Yet, natural monopolies might also be as long-lasting (depending on the
evolution of its cause) so as de facto monopolies. Furthermore, market forces might be
unable to correct excessive prices even if entry barriers are low. 113 Regarding the
emergence of new goods and services in adjacent markets, such conditions do not seem
justified as the test already protects dynamic efficiency by inquiring into the provenance of
market power. Besides, these conditions make the test extremely difficult to implement.114
Other commentators have proposed alternative tests. In what follows I will briefly review
them.
Motta and de Streel proposed another influential test. 115 In their view, intervention
should take place when (1) there are high and non-transitory barriers to entry leading to a
monopoly or near monopoly; (2) the monopoly or near-monopoly is due to exclusive or
special rights; and (3) no sector-specific regulator has jurisdiction to solve the matters. A
number of comments can be made regarding this approach. To begin with, in practice it
only applies to newly liberalised sectors as a complement to the liberalisation process,
whereas excessive pricing rules tend to apply to all sectors and not to discriminate among
them.116 For this reason, this approach might advocate abstinence in some cases. In fact,
111 Ibid.
112 Ibid. The authors think this test is consistent with the European Commission’s practice. Ibid., 120.
Mentioning General Motors and British Leyland cases, where firms had de facto monopolies and charged
very high prices for certificates of low cost aiming at impeding parallel imports and exports.
113 Ezrachi and Gilo, “Are Excessive Prices Really Self-Correcting?,” 262; Ezrachi and Gilo, “Excessive
Pricing, Entry, Assessment, and Investment: Lessons from the Mittal Litigation.”
114 Motta and Streel, “Excessive Pricing in Competition Law: Never Say Never?,” 29.
115 Ibid., 21.
116 O’Donoghue and Padilla, The Law and Economics of Article 102 TFEU, 771.
19
“many excessive pricing cases do not concern utility sectors as such, but instances in which
… States have granted exclusive rights to an undertaking without any corresponding
regulation of prices”.117 Furthermore, this test offers a safe-harbour in cases of regulatory
inactivity.
Röller, a former Chief-Economist at DG Competition, thinks that antitrust
intervention should take place in two scenarios118: (1) in “gap” cases, where firms acquired
dominance by the means of an anticompetitive conduct; 119 and (2) in “mistake” cases,
where the competition authority did not prosecute effectively an exclusionary abuse. The
screening conditions are similar to those proposed by Motta and de Streel.120 In addition to
the limitations pointed out with respect to Motta’s and de Streel’s test there are further
particularities to note. In fact, it is debatable whether antitrust intervention should consider
a past mistake in order to proceed. Indeed, in addition to legitimacy issues concerning the
ability to prosecute because of a past mistake; its feasibility largely depends on the
prescription rules of each jurisdiction. Indeed, it seems very unlikely that a future
prosecution could be viable, unless the exclusion itself could be prosecuted (and in this case
excessive prices could be considered in the determination of the fine).
Nazzini proposes three alternative tests for evaluating antitrust intervention: (1) the
enhanced dominance test; (2) the enhanced consumer harm test; and (3) the postexclusionary exploitation test. 121 According to (1) the enhanced dominance test,
intervention should be restricted to cases where the magnitude of the distorting effect of
price regulation is lowest and the competitive harm of exploitative abuses is highest.122 In
this sense, intervention requires something more than dominance. Consequently, “high and
non-transitory barriers to entry” (as suggested by Motta and de Streel) should not be
sufficient, because these conditions are inherent to finding dominance. However, a test
requiring “insurmountable legal barriers to entry” (as proposed by Evans and Padilla)
would be too narrow. The author thinks it is questionable to require that the dominant
117
Ibid., 771–72.
Lars-Hendrik Röller, “Exploitative Abuses,” in European Competition Law Annual 2007: A Reformed
Approach to Article 82, ed. Claus-Dieter Ehlermann and Mel Marquis (Oxford, UK: Hart Publishing, 2008),
530.
119 “…exploitative abuse cases should be based on acquiring a dominant position through anticompetitive
exclusionary conduct. In this way, exploitative abuse cases lead us back to investigating exclusionary
conduct, which is in fact the proper way to identify anticompetitive practices. By focusing on the road to
dominance via anticompetitive behaviour, exploitative abuse cases are firmly grounded on the way markets
work; they do not make it necessary to decide what is “excessive” from an ex post point of view”. Ibid., 529.
120 In fact, the author suggest that intervention should take place only when (1) there are significant entry
barriers; (2) the market is unlikely to self-correct; (3) the dominant position was due to exclusionary abuse or
government actions; (4) there is no regulator or there is a regulatory failure; and (5) there is no structural
remedy available.
121 Nazzini, “Abuse Beyond Exclusion: Exploitation and Discrimination Under Article 102 TFEU,” 464–
72.
122 Ibid., 465.
118
20
position is the result of past or current special rights or not the result of past investments or
innovations (as Motta and de Streel suggest) because, in practice, in liberalised markets a
dominant position is in part the result of a exclusive or a special right and in part the result
of investments.123 Thus, there is no need to introduce a further screen at the dominance
stage above and beyond the presence of a legal or de facto monopolist or quasi-monopolist
protected by barriers to entry that make entry impossible or unlikely in the long term.124
(2) The enhanced consumer harm test recommends requiring the proof of
demonstrable harm distinct from, and in addition to, the harm that derives from the mere
payment of an excessive price or the imposition of an excessively onerous clause. This
would happen in at least 3 cases: (i) the prevention of new products or innovation; (ii) when
short-term prices impact long-term prices; and (iii) where dominant firms are manifestly
unable to meet demand in circumstances in which it is impossible for other undertakings to
enter the market or to expand output.125 Finally, (3) the post-exclusionary exploitation test
permits to distinguish an illegal price from mere dominance, by proscribing excessive
prices that are the result of an exclusionary conduct.126
Nazzini’s enhanced dominance test has the virtue of providing a more balanced
structural screening test. Yet, a safeguard for dynamic efficiency is still desirable. To this
end, an inquiry into the provenance of market power and the role of innovation in the
market seems advisable. Concerning the post-exclusionary exploitation test, it does not
answer the relevant question, since it does not allow determination of boundaries for the
exercise of market power that does not embrace exclusion. Indeed, the results of the
exclusionary practice might well be considered illicit profits and taken into account when
determining the amount of the fine.
O’Donoghue and Padilla suggest a multi-stage approach 127. The first stage is to
analyse the structure of the market under scrutiny and identify whether the following
conditions are met: (1) the market is protected by high barriers to entry; (2) the consumers
have no credible alternatives to the products of the dominant firm; and (3) investment and
innovation play little or no role in the market. If all the conditions are met, then, as a second
stage, the prices should be compared to several benchmarks. Prices should be considered
abusive if (4) most or all benchmarking exercises point in the same direction; and (5) the
differences between the dominant firm’s prices and the various competitive benchmarks are
“substantial”.
This test provides a clear analytical framework that might well be put into practice.
However, it is based on the assumption that markets self-correct when barriers to entry are
123
Ibid., 466.
Ibid.
125 Ibid., 468–69.
126 Ibid., 469.
127 O’Donoghue and Padilla, The Law and Economics of Article 102 TFEU, 776.
124
21
not high. Here it is important to have in mind that the ultimate entry barrier might be the
price war that an entrant would face after entry. For this and the above-mentioned
comments, Nazzini’s enhanced dominance test and O’Donoghue and Padilla’s test seems
appropriate for analysing excessive pricing cases as long as the structural screening part is
softened considering that what really matters is that there are no competitive constrains in
the market and that entry is unlikely, due to barriers to entry that might well respond to the
size of the market, economies of scale and/or strategic behaviour expected after entry.
B. Legal Transplants in Context
Norms respond to a specific context. As noted above, the US and European
approaches towards unilateral conduct differ because they respond to different market
realities and different ideologies. Indeed, the US views free economies as essentially
competitive if there is free entry to the markets. In contrast, European law reflects a lesser
belief in the ability of markets to erode monopoly power.
In more detail, the US antitrust law has been interpreted since its inception as
prohibiting only exclusionary conduct rather than monopolistic status or exploitative
practices not only for economic reasons, but for political and social motives as well 128. In
addition to the libertarian economic principles that championed during the enactment of the
Sherman Act, there were political concerns about the amount of power that trusts were
achieving. However, the Sherman Act did not intend to control economic and political
power by the means of direct regulation, but by preserving the competitive nature of
markets.129 Furthermore, early in the past century jurisprudential opinions started stressing
the importance of monopoly pricing for the proper functioning of a dynamic market.130
According to Gal, the current US approach is similar but more complex. In her
view, it is still a process-based approach with libertarian roots, but it does acknowledge that
markets may fail. However, long-lasting failures are unusual because of the signalling
power of high prices. In other words, new entry –or its possibility– should constrain the
monopoly’s power to raise prices. Besides, even if market forces cannot erode existing
market power, intervention should not take place because its costs outweigh the benefits
since intervention may lessen incentives to invest. There are considerable practical
difficulties concerning antitrust price control and the institutional features of courts do not
allow them to perform such a regulator role properly.131
128
Gal, “Monopoly Pricing as an Antitrust Offense in the U.S. and the EC,” 350.
Ibid., 352.
130 As Judge Lerned Hand stated in the ALCOA case “The successful competitor, having been urged to
compete, must not be turned upon when he wins” United States v. Aluminum Co. of America, 148 F. 2d 416
(United States/US 1945).
131 Gal, “Monopoly Pricing as an Antitrust Offense in the U.S. and the EC,” 355–57.
129
22
In contrast, the signatories of the European Treaty were less confident in the ability
of markets to self-correct.132 According to European Law, monopolists have the special
obligation not to fully exploit their market power and not to lead to considerable inefficient
outcomes.133 Certainly, the rule against excessive pricing was not only based on economic
grounds but also on a notion of fairness: there is a range of fair prices, and monopolists
have the right to profit, but only by a certain fair margin. The philosophical Ordoliberal
influence of this rule is well known.134
While in practice both the US and Europe (at least at the Communitarian level)
systems have tended to converge towards limiting intervention to exclusionary conducts,
there is a conceptual difference in the reasons that underlie this trend. Indeed, “in the EC
the reticence to intervene is based on practical reasons, while in the U.S. it is based on
theoretical and ideological ones”.135
In small economies the self-correcting power of markets is much more limited than
in big economies. This results from the existence of high entry barriers in many industries,
in most of which only a few number of firms can achieve an efficient scale of production
and benefit from the economies of scale. The entry barriers facilitate the acquisition of
monopoly power and prevent the correction of the market, allowing monopolists to charge
high prices for long periods of time, despite the lack of continuing superior performance.136
Indeed, as entry is due to the post-entry price and the relative efficiency of the entrant
compared to the incumbent, entry is less likely in small economies if only a few firms can
achieve an efficient scale of production. If markets do not self-correct, then antitrust
132
Ibid., 363.
Ibid., 359.
134 See Larouche and Schinkel, “Continental Drift in the Treatment of Dominant Firms”; Gal, “Monopoly
Pricing as an Antitrust Offense in the U.S. and the EC,” 364.
135 Gal, “Monopoly Pricing as an Antitrust Offense in the U.S. and the EC,” 376.
136 Gal, Competition Policy for Small Market Economies, 75; Michal S. Gal, “Size Does Matter: The
Effects of Market Size on Optimal Competition Policy,” S. Cal. L. Rev. 74 (2001): 1441. (“Small economies
need a specially tailored competition policy, because they face different welfare maximization issues than
large ones. The size of some industries can be suboptimal in some markets because limited market demand
constrains the development of a critical mass of domestic productive activities that are necessary in order to
achieve the lowest costs of production. Because of scale economies and high entry barriers, small economies
cannot support more than a few competitors in most of their industries even where productive efficiency can
be achieved”). See also David S. Evans, “Why Different Jurisdictions Do Not (and Should Not) Adopt the
Same Antitrust Rules”, Chicago Journal of International Law 10 (2009): 187. (“Jurisdictions should adopt
competition policy rules that adhere to general principles but that take into account the specifics of their
countries or region …)”. The OECD has a similar view: “The design of the law should reflect the level of
economic development of the country concerned, the structure of its economy and its constitution and culture.
A competition law should not simply be transplanted from a developed country, or even from another
developing country”. OECD, Promoting Pro-Poor Growth, Private Sector Development 43 (2006) Cf. George
L. Priest, “Competition Law in Developing Nations, The Absolutist View,” in Competition Law and
Development, ed. Daniel D. Sokol, Thomas Cheng, and Ioannis Lianos (Stanford, California: Stanford Law
Books, 2013), 79–89.
133
23
intervention might have a role to play.137 Certainly, the practical difficulties that excessive
pricing cases cause are challenging to deal with. Yet it is important to distinguish those
practical difficulties from the ideological reasons that tend to overstate the practical
challenges.
V. THE CHILEAN CASE
A. The identity of Chilean Competition Law
Chile has a unique geography, a small population and concentrated markets. It is
isolated from its neighbours by the Andes in the east and the Pacific Ocean in the west.
From north to south Chile extends 4,260 km and from east to west, in average, only 177
km. According to the last census, Chilean population is about to reach 17 million people. A
third of the whole population lives in Santiago, Chile’s capital city and its administrative
and financial centre. 138 Chilean markets are highly concentrated. The last Global
Competitiveness Report of the World Economic Forum ranks Chile in the place 134 out of
148 in the category of “extent of market dominance” 139 –that is, whether corporate activity
is dominated by a few firms or spread among many firms.140 In spite of the aforesaid,
foreign theories have been transplanted in our antitrust system over and over again without
analysing whether the rules and their underpinning logic fit our economic reality and
without consideration of their internal congruence.
Chilean Competition Law might be well described as an American car with
European spare parts. In fact, the original version of the Chilean Antitrust Act (DL 211)
was largely based on the Sherman Act, especially with respect to the general prohibition
and sanctions. However, while the American influence is still present, several amendments
have reshaped DL 211’s identity towards a more European approach.141 Interestingly, one
of those amendments took place only 6 years after DL 211 was passed. That reform –
137
Gal, Competition Policy for Small Market Economies, 76. Also Gal, “Monopoly Pricing as an
Antitrust Offense in the U.S. and the EC,” 383. (“a firm might remain dominant for long periods of time
despite the lack of superior performance and ex post regulation of excessive prices might be deemed
necessary, at least in some cases”). Yet, “regulation should be limited to cases in which the inefficiency
created by the dominant firm is significant and there is no possibility for reviving competition in due time”
Ibid.
138 See The National Statistics Institute (Instituto Nacional de Estadísticas) web site: www.ine.cl reporting
16,634,603 inhabitants and 38% of them living in Santiago.
139
World
Economic
Forum,
The
Global
Competitiveness
Report,
2013,
471,
http://www3.weforum.org/docs/WEF_GlobalCompetitivenessReport_2013-14.pdf.
140 However Chile ranks 34 out of 148 in general terms. Despite this result, serious competitive
challenges remain, as the high banking spread. Interestingly, other issues that had been considered as
problematic are progressing, as the bankruptcy law.
141 For example Act 19.911 that eliminated the criminal sanction of the Antitrust Act. However, recently
the TDLC has sanctioned both individuals and firms and has tended to apply a per se rule concerning cartel
cases. For an overview and assessment of the Chilean Antitrust System see Francisco Agüero Vargas and
Santiago Montt Oyarzún, “Chile The Competition Law System and the Country’s Norms,” in The Design of
Competition Law Institutions, ed. Eleanor M. Fox and Michael J. Trebilcock (New York: Oxford University
Press, 2012), 149–93.
24
following the model of the Treaty of Rome– aimed at providing the antitrust act with a
specific provision on abuse of dominance, which previously did not exist.142 Since then,
Chilean Competition Law has navigated between both sides of the Atlantic in search of the
best tools for achieving a high degree of social welfare and compliance with law.
This continuous journey has led to substantial practical difficulties. As Paulo Montt,
Sander Van Der Voorde and Michael Jacobs note, “US and European jurisprudence has
influenced the interpretation of the [Chilean] Competition Act’s simple and general
substantive provisions. While the US and Europe have seen significant convergence in
recent years, important differences nevertheless remain, particularly with respect to abuse
of dominance. The influence of these two sometimes divergent systems, along with other
factors, has sometimes resulted in uncertainty regarding the application of the Competition
Act to a particular conduct […]”.143 Regarding the topic of this work, the discrepancies are
much more radical. Indeed, as I will detail below, both courts that intervene in antitrust
cases according to the current institutional design (the Chilean Antitrust Tribunal (TDLC)
and the Supreme Court) have tended to identify themselves with different sides of the
Atlantic.
B. Brief review of Chilean Competition Law
Chilean Competition Law is largely based in one general provision: Article 3 of DL
211, which delineates anticompetitive behaviour. Article 3 has evolved considerably over
time, from a provision hardly influenced by the Sherman Act to a hybridized provision that
includes abuse of dominance within the scope of the competition law.144
Regarding the enforcement of laws, despite the fact that the text or article 3 b) is
clear, it is essential to distinguish the case law of the Chilean Competition Tribunal and the
Chilean Supreme Court, since there was a significant divergence between both courts.
142
See Domingo Valdés Prieto, Libre Competencia Y Monopolio (Santiago: Editorial Jurídica de Chile,
2006), 546.
143 Paulo Montt, Sander Van Der Voorde, and Michael E. Jacobs, “Chile,” in Global Antitrust
Compliance Handbook, ed. D. Daniel Sokol, Daniel Crane, and Ariel Ezrachi, 1st ed. (New York: Oxford
University Press, 2014), 96. Emphasis added.
144 Article 3 establishes a general prohibition in its heading and then provides some examples to illustrate
the general rule. Those examples are 3 non-exhaustive subsections that refer to explicit or tacit agreements or
concerted practices between competitors (art. 3 (a)); the abusive exploitation of a dominant position (art. 3
(b)); and predatory or unfair competition practices to attain, maintain, or strengthen a dominant position (art. 3
(c)). The relevant part of Article 3 for the purpose of this work reads as follows: Article 3. - Any person that
enters into or executes, individually or collectively, any action, act or convention that impedes, restricts or
hinders competition, or sets out to produce said effects, will be sanctioned with the measures mentioned in
article 26 of the present law, notwithstanding preventive, corrective or prohibitive measures that may be
applied to said actions, acts or conventions in each case. The following will be considered as, among others,
actions, acts or conventions that impede, restrict or hinder competition or which set out to produce said
effects: […] b) The abusive exploitation on the part of an economic agent, or a group thereof, of a dominant
position in the market, fixing sale or purchase prices, imposing on a sale another product, assigning market
zones or quotas or imposing other similar abuses. FNE’s translation. Available at: http://www.fne.gob.cl/wpcontent/uploads/2012/03/DL_211_ingles.pdf
25
Indeed, the former –in theory, as will be developed below– had avoided interfering pricing
policies of firms that do not lead to exclusionary behaviour, with some remarkable
exceptions. 145 Remarkably, a recent ruling (which is still subject to the revision of the
Supreme Court) overruled the prior theoretical “hands-off” trend.146 The Supreme Court –
with few vacillations147– has tended to condemn exploitative abuses and has even stated
explicitly that excessive prices without economic justification consist of an abuse of
dominance punishable by DL 211.148
The prior divergence between the TDLC and the Supreme Court can be explained
with a brief reference to an academic article of the TDLC’s current President. In fact, in
2011 Judge Menchaca 149 published an academic paper arguing that excessive pricing
should not be considered as an abuse of a dominant position.150 His arguments are mainly
those referred in section III.B –that is, that excessive prices attract entry, encourage
entrepreneurship, and that antitrust courts are not well suited for regulating prices. Yet, he
went even further by denying the proscription of excessive pricing under DL 211. 151
Despite this, his view is not contradictory with an understanding that includes exploitative
abuses within the scope of competition law. Indeed, he argued that the exercise of market
power becomes abusive when it protects a dominant position, increases it, or increases
monopoly profits. 152 In order to illustrate his point, he provided the example of
exploitative arbitrary discrimination, which restricts the possibility of charging excessive
prices because the monopolist is obligated to charge the same price to all the purchasers
who are in the same situation.153 Actually, as I will show below, this is one of the main
(debatable) reasons why the TDLC has condemned excessive pricing.
145 i.e. Tribunal de Defensa de la Libre Competencia. Judgement 100/2010. C 127-07 (21/07/10).
“Demanda de Nutripro S.A. contra Puerto Terrestre Los Andes Sociedad Concesionaria S.A. y el Fisco”.
146 i.e. Tribunal de Defensa de la Libre Competencia. Judgement 140/2014. C 245-12 (4/11/2014)
“Demanda de Condominio Campomar contra Inmobiliaria Santa Rosa de Tunquén Ltda”.
147 i.e. Tribunal de Defensa de la Libre Competencia. Judgement 100/2010. C 127-07 (21/07/10).
“Demanda de Nutripro S.A. contra Puerto Terrestre Los Andes Sociedad Concesionaria S.A. y el Fisco”.
148 i.e. Tribunal de Defensa de la Libre Competencia. Judgment 93/2010. C 183-08 (06/01/10)
“Requerimiento de la FNE contra Empresa Eléctrica Atacama S.A”.
149 Mr. Tomás Menchaca is the current President of the TDLC. He has played a central role in Chilean
competition law since 1997, when he became part of the TDLC’s predecessor.
150 Menchaca Olivares Tomás, “¿Se Debe Sancionar La Fijación Unilateral de Precios Excesivos?,” in La
Libre Competencia En El Chile Del Bicentenario, ed. Tribunal de Defensa de la Libre Competencia
(Santiago: Thomson Reuters, 2011), 249–66.
151 Ibid., 256. In his view, art. 3 b) should be understood as a reference to the imposition of resale prices
or to any other imposition of abusive prices or as a reference to price fixing.
152 Ibid., 254–55.
153 Ibid., 257. In his words, anticompetitive discrimination “is such discriminatory practice that has no
explanation but to hinder competition, either to exploit abusively its dominant position by charging prices to
the consumers according to their willingness to pay or to exclude competitors. […] The same occurs
everywhere in the world, probably because arbitrary discrimination, including price discrimination, is a
violation against the legal principle of equality.” Translated by the author. Citation omitted.
26
C. Chilean case law on excessive pricing
In this section I will review the Chilean experience concerning excessive pricing
since 2004, when the TDLC was put into effect. I expect to illustrate that Chilean case law
shows particularities that might be of the interest of foreign jurisdictions. Indeed, as I have
stated before, there has been a theoretical divergence between the TDLC and the Supreme
Court. I will demonstrate that such divergence is not existent in practice, but it illustrates
the consequences of identity problems that arise due to the influence of different antitrust
systems and an ambiguous interpretation of legal transplants. Next, I will detail that in
aggregate terms, the judgements concerning both the TDLC and the Supreme Court exhibit
a higher percentage of condemnatory rulings than acquittals. Finally, I will refer to the
practical difficulties, concerning the scope of antitrust law, the use of benchmarks and
remedies.
The TDLC has explicitly referred to excessive pricing only twice, in EMELAT154
and Campomar. 155 In the former, a judgement of 2010, the TDLC affirmed that excessive
pricing was not an antitrust offense. In contrast, in the latter, a majority ruling of 2014, the
TDLC overruled what seemed as a non-intervention policy, declaring that excessive pricing
is the most obvious type of abuse of dominance. The experience shows, however, that
despite what the TDLC stated in EMELAT, the tribunal indeed intervened pricing policies
on the grounds of “unfair” or “abusive” pricing.156 In this respect, the case law illustrates
that prices were deemed abusive when there was an arbitrary discriminatory practice, or
due to the breach of regulations under certain conditions. It is relevant to note that in
EMELAT, the TDLC dismissed the claim in a very similar wording to the U.S. Supreme
Court in Trinko. Mr. Menchaca indeed cites Trinko and Berkey Photo in his article to
support his non-intervention position. 157 However, he interprets a legal provision that
stemmed from the Treaty of Rome on the grounds of American rulings. As I already noted,
the treatment of unilateral behaviour is one of the fields where there is still a significant
divergence between the European and the American systems. Furthermore, exploitative
abuses are a special feature of the European model. Hence, the incorporation of American
principles to enlighten cases dealing with exploitative practices can only lead to nonintervention conclusions. Given the diverse assumptions underpinning the treatment of
monopolization and the abuse of dominance, such intellectual exercise seems inappropriate.
154 Tribunal de Defensa de la Libre Competencia. Judgment 93/2010. C 183-08 (06/01/10)
“Requerimiento de la FNE contra Empresa Eléctrica Atacama S.A”.
155 Tribunal de Defensa de la Libre Competencia. Judgement 140/2014. C 245-12 (4/11/2014) “Demanda
de Condominio Campomar contra Inmobiliaria Santa Rosa de Tunquén Ltda”.
156 i.e. Tribunal de Defensa de la Libre Competencia. Judgement 73/2008. C 147-07 (20/08/08)
“Requerimiento de la FNE contra Empresa Eléctrica de Magallanes S.A” and Tribunal de Defensa de la Libre
Competencia. Judgement 85/2009. C 79-05 (02/07/09) “Demanda de Constructora e Inmobiliaria
Independencia Ltda. en contra de Aguas Nuevo Sur Maule S.A”.
157 Menchaca Olivares Tomás, “¿Se Debe Sancionar La Fijación Unilateral de Precios Excesivos?,” 258–
59.
27
The FNE has constantly recognized “abusive pricing” within the scope of antitrust
yet private parties have presented the majority of the cases to the TDLC. DL 211
allows any individual party, as well as the Head of the FNE, to file a claim before the
TDLC. 159 Concerning exploitative pricing cases, the FNE presented the case before the
TDLC in 3 out of 7 of the cases (EDELMAG,160 Sanitarias,161 EMELAT). The FNE also
settled with the airport parking’s concessionaire in SCL Parking, 162 before the
administrative investigation adopted a judicial status. The results exhibit a majority of
condemnations. Indeed, five out of seven cases ended with condemnatory rulings:
EDELMAG, Atrex,163 EFE,164 Sanitarias and PTLA,165 yet one of them was overruled by
the Supreme Court: PTLA. And two cases ended with acquittal rulings: EMELAT and
Campomar.
law,158
EDELMAG shows that there might be regulatory gaps where antitrust law may have
a role to play. In fact, EDELMAG was a power supply monopolist, and given the size of the
market, the firm was not subject to the supervision of a specific-sector regulator nor to
general tariff-regulation. However, the local authority granted the right to operate in such
market after a bidding process, which included, indeed, tariff regulation. Hence,
EDELMAG’s market power was only constrained by the tender conditions. After the firm
started operating, it realized it made a mistake concerning the appraisal of taxation costs
and, consequently, decided to increase the price of power supply, breaching the tender
conditions. The TDLC stated that given the particularities of the case –mainly, that
consumers were not part of the regulatory contract so that they were not entitled to sue the
monopolist– the breach of the tender conditions consisted of an abuse of a dominant
position. The Supreme Court upheld the TDLC’s ruling.166
158
For instance, in 2012 the FNE dismissed 3 “abusive pricing” claims, but after a quick screening test
(market definition and the analysis of objective justifications): Investigations N°1681-10; 1892-11; and 212712. In the last case, the FNE explicitly stated that although it decided not to present the case before the TDLC,
the individual might well do it on his own.
159 Article 18 Nº1 DL 211.
160 Tribunal de Defensa de la Libre Competencia. Judgement 73/2008. C 147-07 (20/08/08)
“Requerimiento de la FNE contra Empresa Eléctrica de Magallanes S.A”.
161 Tribunal de Defensa de la Libre Competencia. Judgement 85/2009. C 79-05 (02/07/09) “Demanda de
Constructora e Inmobiliaria Independencia Ltda. en contra de Aguas Nuevo Sur Maule S.A”.
162 Tribunal de Defensa de la Libre Competencia. AE 04/11 (03/05/2011).
163 Tribunal de Defensa de la Libre Competencia. Judgement 75/2008. C. 113-06 (30/09/08). “Demanda
de Atrex y otros contra SCL”.
164 Tribunal de Defensa de la Libre Competencia. Judgement 76/2008. C 100-06 (14/10/08). “Demanda
de GTD Teleductos S.A. contra EFE”.
165 Tribunal de Defensa de la Libre Competencia. Judgement 100/2010. C 127-07 (21/07/10). “Demanda
de Nutripro S.A. contra Puerto Terrestre Los Andes Sociedad Concesionaria S.A. y el Fisco”.
166 Corte Suprema de Chile. Judgement Nº 5505-08 (26/11/08). “Requerimiento de la FNE contra
Empresa Eléctrica de Magallanes S.A”.
28
Campomar –the last decision concerning excessive pricing where the majority
opinion overruled the prior apparent non-interventionist approach– seems to limit
intervention to cases when there is a regulatory failure. Indeed, the TDLC set a test
requiring high market power not due to past investments or innovation and prices
significantly above the result of one or several benchmarks applied together with consistent
results. 167 However, the TDLC ultimately justified the dismissal because there were no
insurmountable barriers to entry in the market168 (a requirement that was not included in
the paragraph intended to define the test). Campomar was a condominium community
where the water supply was provided by the real estate developer as a monopolist, who
according to the plaintiffs was charging excessive prices. The TDLC held that a potential
competitor could eventually provide the service, because there was another firm with an
operative network within a reasonable radius. While the tribunal acknowledged that the
cost of expanding the network could be prohibitive, in its view the plaintiffs did not prove
that those costs were an insurmountable barrier to entry. Furthermore, the TDLC stressed
that there must be a special restrictive consideration when dealing with excessive pricing
claims.169 Hence, these probative challenges raise questions about both the legal standard
and the standard of proof that the TDLC will require in order to consider economic barriers
to entry as insurmountable.
Concerning remedies, the Chilean experience shows that settlements may play an
important role in order to improve markets’ outcomes. While fines have been the most
common remedy and they have been based on the economic benefit obtained from the
illegal conduct in order to deter future infringements, SCL Parking illustrates how
settlements can help to cease exploitative practices quickly and effectively. In SCL Parking,
the airport parking’s concessionaire was subject to price caps according to the tender
conditions. Subsequently, the Ministry of Public Infrastructure decided to increase those
price caps and three years later the Ministry deregulated the tariff. After deregulation, the
fee increased steadily to 266% of its former value. The FNE started an investigation and
the concessionaire, on its own initiative, approached the antitrust authority proposing to
modify its pricing behaviour, reaching a settlement with the FNE that improved parking
conditions for final costumers.
In addition, the FNE recently reached a settlement with EFE (Chilean Railway
Company).170 EFE had elaborated an internal guideline with respect to pass through rights
for telecommunication equipment that allowed it to charge a fee according to the firms’
ability to pay and the magnitude of the investments. The TDLC held that such pricing
structure had no cost basis but was based on demand factors or willingness to pay.
167
Campomar. C°20.
Campomar. C°38.
169 Campomar. C°37.
170 Settlement approved by the TDLC in December 17 th, 2013 within the adversarial proceeding “C 25813 - Requerimiento de le FNE contra EFE”.
168
29
Accordingly, the TDLC ordered EFE to modify its guideline in a transparent, objective and
non-discriminatory manner. The FNE subsequently monitored the compliance of these
conditions and found that EFE had not fulfilled the TDLC’s order. After the FNE filed a
complaint for non-compliance,171 EFE settled and modified its internal guideline, amending
the conditions objected by the FNE, complying with the TDLC’s rulling.
In some cases the TDLC has even gone further by imposing pro-competitive duties
on the defendants and proposing regulatory amendments. For example, in Sanitarias the
TDLC found that water distribution and sewage firms were charging extra fees for areas
beyond their concession, which increased the price of the services significantly. After
determining that the defendants had market power even outside the concession area due to
the existence of economies of scale and scope, the TDLC held that some fees were arbitrary
discriminatory because there was not a justification for charging the tariffs only outside the
concession area. Furthermore some of the fees, in fact, were a duplication of charges for
real estate developers. Accordingly, the TDLC imposed behavioural remedies regarding
negotiations between the defendants and the real estate developers for financing new
projects; and also proposed regulatory amendments aimed at providing open access to
water distribution. The TDLC’s aim was, on the one hand, to provide more transparency to
the negotiations between the defendants and the real estate developers; but also to modify
the structural and institutional features that led to the abuses by proposing regulatory
amendments (which were dismissed by the Supreme Court for procedural reasons).
Regarding benchmarks, when there has been a bidding process, tender conditions
have provided the grounds for a formal analysis (EDELMAG, Atrex, PTLA). The TDLC has
been of the opinion that when there is ex ante competition for the market, the regulations
that arise from the competitive process represent the competitive outcome and should not
be modified without prior consult to the Tribunal.172 In the absence of such conditions, the
TDLC has mainly used discrimination benchmarks for a substantive analysis. For example,
in EFE the TDLC concluded that EFE’s internal guidelines allowed the firm to discriminate
on a case-by-case basis exploiting consumers’ willingness to pay, without an objective
justification. Interestingly, the TDLC dismissed the claim that prices were excessive
because in its view the FNE did not prove EFE’s costs conclusively; yet, it condemned EFE
on the ground of arbitrary discrimination. In addition, the TDLC has used geographic
benchmarks to compare trading conditions and determine their merit. For example, in
Sanitarias the TDLC compared regulated and non-regulated areas to conclude that some
charges exclusive to the non-regulated area were abusive. In SCL Parking, the FNE
challenged the fees along with a historical benchmark, comparing the prices according to
the bidding bases and then after deregulation. The analysis is simpler concerning the
171
172
Tribunal de Defensa de la Libre Competencia .C 258-13 - Requerimiento de le FNE contra EFE.
Tribunal de Defensa de la Libre Competencia AE 04/11 (03/05/2011) SCL Parking.
30
Supreme Court. In fact, it has analysed exploitative cases on the base of a cost-plus
standard173 and discrimination benchmarks.174
V. CONCLUSIONS
The condemnation of excessive pricing is a debatable matter for ideological and
practical reasons. However, the non-intervention approach that tends to champion
nowadays is commonly led by misperceptions on the merits of antitrust intervention and the
self-correctiveness of excessive prices. Certainly, the practical difficulties that excessive
pricing cases generate are a challenging issue to deal with, and in some cases they might
justify non-intervention. Yet, it is important to distinguish those practical difficulties from
the ideological reasons that tend to overstate the former. An assessment of the arguments in
favour and against intervention shows, on a policy level, that antitrust law might have a role
to play when the competitive process fails. Unquestionably, the prohibition of excessive
prices is not costless, but neither is non-intervention. Because of this, a rule of reason
standard seems better suited to address excessive pricing cases on a case-by-case basis. On
a practical level, when there is a provision addressing excessive pricing as an abuse of
dominance, it is advisable to follow tests that aim at defining the practical application of
such a provision and discharge tests that advocate abstinence in contexts where the law
does not grant antitrust immunity.
Furthermore, even if hard enforcement is considered inappropriate; soft
enforcement might play a helpful role to erode the causes of high prices. Indeed, excessive
pricing causes inefficiencies that competition law is meant to prevent, and competition
authorities tend to count on a vast array of legal powers –including advocacy and the
negotiation of settlements– that may improve the performance of markets. It is important to
note that legal amendments are slow and costly. Hence, it might be desirable to contest
political inertia with advocacy efforts and look for cooperative solutions with the private
sector in the meantime in order to decrease the welfare losses of market failures. Of course,
active enforcement is a prerequisite in this regard, since firms will only consider credible
threats as incentives for achieving settlements with the authority. In addition, hybridized
powers appear as an interesting choice and jurisdictions might do well in considering such
powers for future legal reforms.
The Chilean experience may be helpful to point out particular situations that might
arise in other small economies. Primarily, small economies adopt the competition laws of
larger ones and may even mix rules from different systems that respond to diverse
assumptions, market realities and ideologies. While the adoption of foreign competition
laws has significant benefits, the combination of different rules may lead to identity
173
Corte Suprema de Chile. Judgement Rol N° 1022-2010. “Requerimiento de la FNE contra Empresa
Eléctrica Atacama S.A.” (18/08/10). C°4.
174 Corte Suprema de Chile. Judgement Rol 5443-09 “Demanda de Constructora e Inmobiliaria
Independencia Ltda. en contra de Aguas Nuevo Sur Maule S.A.” (18/05/10) C°13.
31
problems and legal uncertainty, which is indeed the Chilean case. As noted, the TDLC has
cited American rulings to justify acquittal decisions concerning exploitative practices. The
reasoning underpinning those rulings, of course, leads to non-intervention outcomes.
However, such analysis lacks a proper understanding of the aims and history of a provision
that was transplanted from the Treaty of Rome. Due to the non-binding nature of
precedents in the continental tradition, this issue is particularly problematic. Furthermore, it
is patent that the assortment of economic and philosophical components within antitrust
standard leads to a higher degree of uncertainty.175
The last point is closely related to the aims of competition law. In fact, according to
recent rulings the TDLC has followed the conventional trend towards pursuing economic
efficiency as the main goal of competition law,176 yet the TDLC’s practice still reveals
redistributive concerns. For example, the cases concerning “arbitrary discrimination” have
focused on welfare transfers from consumers to the monopolist without further
consideration of whether those wealth transfers were also inefficient. Despite the fact the
TDLC has analysed the possibility of an objective justification, which may well include an
efficiency defence, this does not avoid condemning discriminatory practices on mere
redistributive grounds.
In closing, from a policy view, the European model seems better suited for small
economies, if applied correctly. Besides, even if the choice of a jurisdiction is not to
intervene at all –assuming there is enough discretion for making such decision– the pursuit
of the public good requires the justification of the decision with the right arguments and not
by mere suppositions based on different market realities, wrong legal transplants’
interpretations or mere ideological arguments.
175 As Ginsburg and Fraser have pointed out: “Economic analysis leads to predictability and stability in
the law, which are essential elements in a rule of law regime”. Douglas H. Ginsburg and Eric M. Fraser, The
Role of Economic Analysis in Competition Law, SSRN Scholarly Paper (Rochester, NY, 2010), 31,
http://papers.ssrn.com/abstract=1610189 (accessed March 3, 2015).
176 In particular, the TDLC said that it is its function to try to maintain the conditions by which free
market constrain dominant firms to decrease prices, so that they charge a price as close to the competitive
price as possible and induce optimal output. Tribunal de Defensa de la Libre Competencia. Judgment
93/2010. C 183-08 (06/01/10) “Requerimiento de la FNE contra Empresa Eléctrica Atacama S.A”. C°31.
32
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